In the heat of the fall campaign, the commentariat got its knickers twisted over Donald Trump’s vow that, if elected, he’d have his Justice Department appoint a special prosecutor to investigate Hillary Clinton, his political rival. How remarkable, then, that the media is so indifferent to the revelation that, at the very same time, the Obama Justice Department was actively conducting an investigation of Trump.
As I recounted in Wednesday’s column, the FBI reportedly had suspicions that Trump, or at least members of his “team,” might be violating financial and banking laws. Upon poking around, the Bureau determined there was no “nefarious purpose” in the connection of a server in Trump Tower to at least one bank.
Reporting indicates that surveillance warrants were sought from the FISA court in June and October 2016. The first one is said to have “named” Trump himself (we don’t know if that means the government was targeting Trump for surveillance, or if his name was merely mentioned in the FISA application). That application was apparently so lacking that the FISA court refused to authorize it, even though that court is generally quite accommodating of government requests to conduct secret searches and eavesdropping. The court is reported to have granted a narrower application in October — one that appears not to have named Trump. The court’s proceedings are secret, so this reporting cannot be confirmed.
I want to draw attention to a fact I did not dwell on in Wednesday’s column: The FBI is not authorized to seek a national-security surveillance warrant from the FISA court — just as it is not authorized to seek such a warrant from a U.S. district court in an ordinary criminal case. Only the Justice Department is permitted to do that. The FBI could not have sought FISA warrants against Trump without the Obama Justice Department’s approval and assistance.
Throughout the criminal investigations of Hillary Clinton for mishandling classified information, the Obama Justice Department would not use the grand jury or help the FBI obtain search or surveillance warrants. As a result, the FBI had no power to compel the production of evidence. Suspects had to be cajoled into cooperating. The only thing the Justice Department was willing to do was grant highly unusual immunity deals, ensuring that suspects could not be prosecuted if they disclosed incriminating evidence.
And then there was the Clinton Foundation corruption investigation. Recall that the Bureau’s investigators, in seeking to build their case, sought access to the e-mails the FBI had managed to acquire in the Clinton e-mails caper. But access was denied by the Obama Justice Department (specifically, by the U.S. Attorney’s office in the Eastern District of New York — the office Loretta Lynch led before being elevated to attorney general).
And now we learn that, despite what the intelligence community assures us were grave concerns about Russia’s role in hacking operations against the Democratic National Committee and Clinton campaign chairman John Podesta, the FBI never obtained access to the physical servers and devices believed to have been hacked.
According to FBI director James Comey’s congressional testimony this week, the FBI made repeated requests for access (presumably to the DNC and the Clinton campaign), but was rebuffed.
The FBI had no legal power to compel the production of evidence from the DNC or Podesta; for that, they needed the Obama Justice Department.
Bear in mind: The joint assessment released by the FBI, CIA, and NSA last week describes the penetration of the Democratic victims’ communications as “cyber-espionage” — an extremely serious offense with obvious national-security implications. Now we learn, however, that in forming that explosive conclusion, our intelligence agencies were content to rely on an examination by an unidentified “private company.”
When pressed by the Senate Intelligence Committee about why the FBI was denied access to the DNC’s servers and Podesta’s device, Comey reportedly said he did not know.
That sounds like a dodge coming from someone as generally well-informed as the director. Understand, though, that the question was more politically fraught than readers not versed in criminal procedure may appreciate. In essence, he was being asked to explain why the Obama Justice Department did not help the FBI.
It comes back to the same issue that plagued the Clinton investigation: The FBI had no legal power to compel the production of evidence from the DNC or Podesta; for that, they needed the Obama Justice Department.
Only the Justice Department has the power to open a grand-jury investigation. That would have enabled the FBI, by using grand-jury subpoenas, to demand access to the devices in order to do its own examination. Or, if exigent circumstances dictated seizing evidence rather than asking for its production, the FBI would have needed the Justice Department’s assistance to compose a search-warrant application and present it to a U.S. district judge for approval.
Just as in the Clinton e-mails investigation, the Justice Department was either AWOL or functioning as counsel for the Democrats — not for the United States.
If the Justice Department refuses to assist the FBI, the FBI is in no position to force witnesses in possession of vital evidence to surrender it.
If the Justice Department refuses to assist the FBI, the FBI is in no position to force witnesses in possession of vital evidence to surrender it. Agents are reduced to pleading with those witnesses for voluntary cooperation. If they refuse — and if the Democrat-led Justice Department declines to force the Democratic National Committee and the Democratic presidential campaign to produce evidence — then the FBI has no choice but to accept what the FBI would never tolerate in a normal case: analysis by a private, Democrat-retained company rather than the FBI’s legendary forensics lab.
On the other hand, if the Justice Department decides a case against Republicans is worth pursuing aggressively, even the absence of evidence of a crime is no obstacle — they just go the FISA court, and they keep going until they get the answer they like.
So, in a nutshell: A vague and apparently unsubstantiated suspicion of criminality connected to the Republican presidential candidate, based on potential involvement of Russia, prompts the Obama Justice Department to continue investigating under FISA and to approach the court twice — the latter time, very shortly before Election Day — for surveillance warrants.
In stark contrast, concrete and substantiated suspicions of wrongdoing by the Democratic presidential candidate prompt a refusal by the Obama Justice Department to assist the FBI investigation (except to immunize the wrongdoers). Moreover, despite what the intelligence community maintains is confirmed evidence of Russian cyberespionage, the Obama Justice Department — far from seeking court warrants — refuses to compel production of Democratic communication devices.
You’d almost think the Obama Justice Department makes enforcement decisions based on partisan politics.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.